Security National Bank of Greensboro v. Hannah

114 S.E.2d 273 (1960)

252 N.C. 556

SECURITY NATIONAL BANK OF GREENSBORO, In Its Own Right, and as Trustee Under the Will of Claude Kiser, Deceased, v. Jean Kiser HANNAH, Martha Jean Hannah, James Hunt Hannah, III, a Minor, Mamie Ann Hannah, a Minor, Richard M. Kiser, And All Persons Not in Esse Who May Take Under the Will of Claude Kiser.

No. 607.

Supreme Court of North Carolina.

May 18, 1960.

*275 E. D. Kuykendall, Jr., Greensboro, as guardian ad litem and for Martha Jean Hannah, defendant-appellants.

York, Boyd & Flynn, Greensboro, for plaintiff-appellee.

*276 Cooke & Cooke, Greensboro, for defendants Jean Kiser Hannah and Richard M. Kiser, appellees.

MOORE, Justice.

The time of termination of the trust is the sole question for decision on this appeal. The solution depends upon the proper interpretation of the first sentence in paragraph 12, Item Fifth, of the will, which reads as follows: "When my youngest living grandchild becomes twenty-one years of age, the trust property then in the hands of the trustee shall be distributed."

Appellees maintain that the trust terminates when the youngest grandchild of testator living at the time of his death reaches the age of twenty-one. On the other hand, appellants contend that the trust continues until the youngest grandchild, whenever born, reaches the age of twenty-one years.

The controlling objective of testamentary construction is the intent of the testator. Wachovia Bank & Trust Co. v. Schneider, 235 N.C. 446, 451, 70 S.E.2d 578. This intent is ordinarily to be ascertained from an examination of the will from its four corners. Bullock v. Bullock, 251 N.C. 559, 563-564, 111 S.E.2d 837.

From an examination of the will as a whole, it is evident that testator's wife and children were the primary objects of his bounty. The portion of the will involved here makes no direct gift to grandchildren or to any person other than testator's children. The sentence quoted above is only a "measuring rod" for determination of the duration of the trust.

The possibility that Richard M. Kiser will have issue and that Jean Kiser Hannah will have other child or children will continue to exist so long as they live. The law presumes that the possibility of issue is not extinct until death. McPherson v. First & Citizens Nat. Bank, 240 N.C. 1, 9, 81 S.E.2d 386. Therefore, if the contention of appellants is correct, the trust must continue and the trust property may not be distributed until after the death of both of testator's children. Either or both may be survived by a child or children of tender years. In such case the property could not be distributed until the youngest of them arrives at the age of twenty-one. The construction urged by appellants would deprive testator's children of all except a small portion of the gift. They would each realize $50 per month for life, emergency help in case of illness and assistance in the college education of their children. When we consider that the trust property has a present value of approximately $350,000, it is apparent that testator's children would scarcely receive even the income from the trust estate.

We do not agree that such result is in accord with testator's intention. He declares in Item Fifth, paragraph 12, "* * * it is my desire that my daughter, Jean K. Hannah, and my son, Richard M. Kiser, shall share equally in my estate." Directions are then given to the trustee for arriving at and making an equal distribution between them of the entire trust property at the termination of the trust. This language is used: "Said share shall then (after computation so as to arrive at equality) be paid over to each of my said children * * *" (Parentheses ours). The further provision that the shares be paid to testator's children, "if living," shows that the testator did not intend that the termination of the trust await the death of both of his children. It seems clear that testator intended to give the trust property to Jean and Richard.

It is true that the trustee is directed, in arriving at an equal division between Jean and Richard, to take into consideration "* * * all mounts paid out * * * to or for the benefit of Richard M. Kiser and any children that may be born to him." But this relates solely to the accounting for the purposes of distribution at the termination of the trust. References to the possibility that children may be born to Richard *277 have no relation to the duration of the trust. The provisions for "college education" and expenses for "emergency" illness of testator's grandchildren have no significance on the question of duration of the trust, for the amounts expended by the trustee for these purposes are to be charged to the respective parents of the grandchildren so benefited in the final distribution of the trust property. These provisions are direct gifts to Jean and Richard and only indirect gifts to the grandchildren. Testator unquestionably assumed that his children would take primary responsibility for the needs of the grandchildren. The measures provided for in the will were to aid the parents pending the distribution of the trust property. It is suggested that the very fact the trust was created indicates an intention on the part of the testator to provide for all grandchildren whenever born. We do not agree. It is apparent that the purpose of the trust was to give ample time for a competent and orderly liquidation of the assets of the estate. Testator gave detailed instructions for the disposition of the corporate stocks owned by him. Compliance with these instructions requires time, negotiation and deliberate action.

We think the phrase "youngest living grandchild" in the sentence first quoted in this opinion means the youngest grandchild living at testator's death. The provisions of the will we are asked to construe do not seem to us to be ambiguous or subject to more than one interpretation, but, if they are, we feel compelled to adopt the interpretation already indicated. "A man's widow and his children are the primary objects of his bounty. In re Crozer's Estate, 336 Pa. 266, 9 A.2d 535. In the absence of a manifest intention to the contrary, a will is to be construed in favor of beneficiaries appearing to be the natural or special object of testator's bounty." Coffield v. Peele, 246 N.C. 661, 666, 100 S.E.2d 45, 48.

It is unnecessary on this appeal to decide whether or not the bequests to testator's children of shares in the trust property constitute vested or contingent estates.

Appellants did not challenge in their brief or in the argument here the provisions of the judgment below for possible acceleration of the termination of the trust. We therefore express no legal opinion with respect thereto.

The judgment of the trial court in its entirety is

Affirmed.